Aussie employers are on notice after a class action seeking millions of dollars in compensation was launched against BHP over a precedent-setting public holiday ruling handed down in 2023.

Under the ruling, employers are required to ask workers whether they are willing to work on public holidays, regardless of what an individual contract or workplace agreement says.

BHP was the first employer found to have breached the ruling and was hit with $100,000 in fines last year.

However, that case covered just 85 workers who were rostered to work on Christmas Day at the Daunia mine in central Queensland.

The new class action, funded by the Mining and Energy Union, could cover up to 7,000 mineworkers employed by BHP’s labour hire subsidiary, Operations Services (OS).

The case could set another major precedent for Australian employers over how public holiday rules must be applied and what businesses need to do to avoid costly legal action.

Mining and Energy Union General President Grahame Kelly said BHP put production ahead of OS workers’ rights and now it has been caught out.

‘At Daunia mine, BHP allocated Christmas and Boxing Day shifts for Operations Services workers by literally pulling names out of a hat,’ he said.

BHP last year was the first employer found to breach the terms, and was hit with $100,000 in fines last year

‘The Federal Court agreed that wasn’t a reasonable request as required by law and those workers were subsequently compensated.

‘But it wasn’t just Daunia mine. Workers across BHP Operations Services nationally were denied the choice to spend important public holidays with their families and loved ones, and they also deserve compensation.’

The union stated that workers may be covered by the class action if they were employed by Operations Services Production or Maintenance between December 2019 and March 2023 and were required to work on a public holiday during this period.

During this time, it said BHP employed Operations Services workers at Queensland coal mines, Pilbara iron ore operations, South Australian copper mines and the Mt Arthur coal mine in New South Wales.

‘Giving up Christmas, Easter and other public holidays should only happen after a genuine request and real consultation with workers – not only because a company wants to keep production rolling,’ Mr Kelly added.

The union said eligible workers will be contacted and given the opportunity to opt out of the class action.

The Daily Mail has contacted BHP for comment.

BHP has challenged the court’s interpretation of the law and has asked for the Full Court to hear its argument on November 9.

The class action, funded by the Mining and Energy Union, could cover up to 7,000 mineworkers employed by the labour hire subsidiaries Operations Services 

A defence filed in May argued that the company’s mines operate 24 hours a day and employees should anticipate working on public holidays.

Workers’ contracts also outlined that they may have to work on these days and that this was incorporated into their wages.

BHP also argued that communications through policy, payments and roster notifications constituted a request. It added that the public holidays also fell in the middle of swing shifts and questioned how its employees could have had those days off.

‘Workers were paid $700 per shift in addition to the employee’s annual salary and any applicable allowances, which payment would not have been made if those group members did not work those shifts,’ the company said.

Following the 2023 Federal Court ruling, unions sounded the alarm to employers in the airline, hospitality, logistics and resources sectors, warning they could not automatically roster workers on public holidays.

Some mining companies adjusted their systems following the ruling. However, some employers could still face fines because liability for civil penalties can extend back six years.